Government asks justices to intervene on asylum ban

Posted Tue, December 11th, 2018 7:16 pm by Amy Howe

Last month President Donald Trump blasted a ruling by a federal judge in San Francisco that blocked the government from enforcing a rule that would prohibit immigrants who enter the country illegally from requesting asylum. Trump criticized U.S. District Judge Jon Tigar, who issued the order, as an “Obama judge” and predicted that the government would “win that case in the Supreme Court of the United States.” Trump’s comments elicited a rare public rebuke from Chief Justice John Roberts, and today the federal government went to the Supreme Court, asking the justices to put Tigar’s order on hold while it appeals the ruling to the U.S. Court of Appeals for the 9th Circuit – and, if necessary, the Supreme Court.

Today’s filing, by U.S. solicitor general Noel Francisco, complained that Tigar’s ruling was “deeply flawed.” Emphasizing that the Trump administration had adopted the rule “to address an ongoing crisis at the southern border,” Francisco argued that the lawsuit should not go forward at all: The fact that immigration groups challenging the rule might lose funding as a result of the rule does not, he says, give them a legal right to sue.

But even if the organizations did have a right to sue, Francisco continued, the court should still step in because the government is likely to win on the merits of its claim, an important criterion for the justices in deciding whether to grant temporary relief. The new policy is consistent with federal immigration law, which gives the secretary of homeland security and the attorney general “broad discretion” in deciding whether to grant asylum. Here, Francisco contended, there is no dispute that the officials could consider whether an individual applicant had entered the country illegally in deciding whether to grant his asylum application. If that’s true, Francisco observed, there’s no reason why the officials can’t also conclude that everyone who enters the country illegally is ineligible to apply for asylum.

If Tigar’s order is allowed to remain in effect, Francisco added, it will frustrate “a coordinated effort by the President, the Attorney General, and the Secretary to re-establish sovereign control over the southern border, reduce illegal and dangerous border crossings, and conduct sensitive and ongoing diplomatic negotiations.” By contrast, he posited, there will be no real negative effects on immigrants, because they are already breaking the law when they cross into the United States illegally. Moreover, he suggested, they can always apply for asylum at crossing points or seek other (although less desirable) forms of protection in the United States.

Putting everything else aside, Francisco concluded, the Supreme Court should intervene because Tigar’s order sweeps too broadly, barring the government from enforcing the rule anywhere in the United States. These kinds of nationwide injunctions, Francisco asserted, are “part of a troubling pattern of single judges dictating national policy—a trend that is taking a growing ‘toll on the federal court system.’” At the very least, he told the justices, they should rule that the order only applies to the challengers’ clients who would otherwise be barred from applying for asylum.

The government’s request went to Justice Elena Kagan, who handles emergency filings from the geographic area that includes California. Soon after the request was filed, Kagan directed the challengers to file a response by noon on December 17. She could rule on the request herself, but she is more likely to refer it to the full court.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.